[Cite as State v. James, 2020-Ohio-4289.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

GREGORY JAMES, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 18 MA 0064 

 

Criminal Appeal from the 

Court of Common Pleas of Mahoning County, Ohio 

Case No. 17 CR 1276 

BEFORE: 

Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges. 

JUDGMENT: 

Affirmed. 

Atty. Paul Gains, Prosecutor, Atty. Ralph Rivera, Assistant Prosecutor, Mahoning 

County Prosecutor’s Office, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 

44503, for Plaintiff-Appellee, and 
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Case No. 18 MA 0064

Atty. Samuel Shamansky, Atty. Donald Regensburger, Atty. Colin Peters, Atty. Sarah 

Hill, Samuel H. Shamansky Co., L.P.A., 523 South Third Street, Columbus, Ohio 

43215, for Defendant-Appellant. 

 

Dated: 

August 19, 2020 

 

DONOFRIO, J. 

{¶1} Defendant-appellant, Gregory James, appeals his convictions in the 

Mahoning County Common Pleas Court following a jury trial for two counts of aggravated 

murder, one count of attempted murder, three counts of felonious assault, one count of 

aggravated burglary, one count of intimidation of a witness, and seven firearm 

specifications. 

{¶2} On March 8, 2017, Javel Bates was at the Youngstown, Ohio home of his 

half-brother, Ronald Lewis. Javel eventually left Ronald’s house and returned later the 

same day. When Javel returned, Ronald noticed that Javel’s car had numerous bullet 

holes in it and Javel had been shot. Ronald called 911 to report that Javel had been shot. 

{¶3} An ambulance arrived to transport Javel to the hospital. After the 

ambulance left, Detectives David Sweeney and Ronald Barber of the Youngstown Police 

Department arrived at Ronald’s house. Detective Sweeney inspected Javel’s car and 

observed numerous bullet holes and a large amount blood on the driver’s side floor. 

Detective Sweeney then questioned Ronald as to what happened to Javel. Ronald was 

initially hesitant to discuss what happened to Javel. Eventually, Ronald said that Javel 

told him that appellant was one of the people who shot him. 

{¶4} Ronald later went to the Youngstown Police Department to give an official 

statement about Javel’s shooting to Detectives Sweeney and Barber. In this statement, 

Ronald again said that Javel told him appellant was one of the people who shot him. 

Detective Sweeney was never able to interview Javel because of the severity of his 

injuries. Javel died on March 22, 2017 as a result of his gunshot wound. At the time of 

appellant’s trial, Javel’s murder was unsolved. 

{¶5} On the same day Javel died, Ronald made a post on Facebook. While the 

specific content of the post is unknown, the post had a threatening nature and indicated 

that Ronald was upset. 
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{¶6} On the morning of March 24, 2017, Ronald was asleep in bed with his wife, 

Tracey Lewis, at their home. Also present at the home was Ronald’s sister, Sevalle 

Turner. Sevalle was sleeping downstairs while Ronald and Tracey were in their room 

upstairs. 

{¶7} At about 6:00 or 6:30 a.m., Tracey was awoken by Ronald. Tracey turned 

over to look at the clock at the foot of the bed. When Tracey turned back towards the 

door, she saw two men standing in the bedroom doorway, each holding a gun. Tracey 

started to scream. Ronald turned around and the two men fired numerous gunshots 

striking both Ronald and Tracey. Ronald sustained 17 gunshot wounds while Tracey 

sustained 13. Ronald died as a result of the attack but Tracey survived. 

{¶8} Sevalle was in the downstairs bathroom when she heard the gunshots 

fired. She opened the bathroom door and saw an African-American man dressed in black 

clothing wearing a mask and pointing a silver gun at her. That man moved away from the 

door and a second African-American man approached the bathroom doorway pointing a 

black gun at her. Neither man fired their gun or said anything to Sevalle. Once the two 

men left, Sevalle called 911. 

{¶9} Officers Colleen Villio and Jeff Kay from the Youngstown Police 

Department were the first to arrive at the house. They discovered Ronald and Tracey 

shot numerous times in the upstairs bedroom. They heard Tracey faintly say that she 

was dying. They also discovered that the kitchen door to the outside was propped open 

with a garbage can and the window by the kitchen sink was also open. Finally, they 

discovered a ladder near the kitchen sink window. 

{¶10} Officers Villio and Kay were joined by Detective Donald Scott and Officer 

Greg Miller from the Youngstown Police Department. Detective Scott took photographs 

and collected evidence, including shell casings and DNA swabs from the outside of the 

kitchen window. They found both .45 caliber and 9 mm shell casings. 

{¶11} The DNA samples and shell casings were sent to the Bureau of Criminal 

Identification and Investigation (BCI) for analysis. Samuel Troyer, a BCI forensic scientist, 

conducted the DNA analyses on the DNA samples and the shell casings. Troyer found 

DNA on one of the shell casings that belonged to a Jordan Kennedy. Troyer also 

concluded that appellant’s DNA was on the outside of the kitchen window. 
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{¶12} During their investigation, Detectives Sweeney and Barber discovered that 

Jordan Kennedy was housed in the Mahoning County Justice Center awaiting trial on an 

unrelated charge. At the time of the shooting, Jordan was incarcerated at the Mahoning 

County Justice Center and had been in the Justice Center since December of 2016. 

Detectives Sweeney and Barber interviewed Jordan. According to Jordan, he borrowed 

two guns from appellant prior to being incarcerated: a .45 caliber and a 9mm. Shortly 

before being incarcerated, Jordan returned one of the firearms to appellant. After being 

incarcerated, Jordan arranged for appellant to retrieve the second firearm from his 

girlfriend, Hydeia Hardin. 

{¶13} Detectives Sweeney and Barber then interviewed Hydeia. She confirmed 

that appellant picked up a firearm from her along with some bullets while Jordan was 

incarcerated. 

{¶14} On November 30, 2017, a Mahoning County Grand Jury indicted appellant 

on nine counts: (1) aggravated murder in violation of R.C. 2903.01(A)(F), an unspecified 

felony; (2) aggravated murder in violation of R.C. 2903.01(B), an unspecified felony; (3) 

murder in violation of R.C. 2903.02(A), an unspecified felony; (4) attempted murder in 

violation of R.C. 2923.02 and R.C. 2903.02(A), a first-degree felony; (5) felonious assault 

in violation of R.C. 2903.11(A)(1)(D), a second-degree felony; (6) felonious assault in 

violation of R.C. 2903.11(A)(2)(D), a second-degree felony; (7) felonious assault in 

violation of R.C. 2903.11(A)(2)(D), a second-degree felony; (8) aggravated burglary in 

violation of R.C. 2911.11(A)(1)(B), a first-degree felony; and (9) intimidation of a witness 

in violation of R.C. 2921.04(B)(2)(D), a third-degree felony. Appellant also faced firearm 

specifications pursuant to R.C. 2941.145 on counts one through eight. 

{¶15} Appellant filed a motion in limine seeking to exclude testimonial 

statements Ronald made to any officer of the Youngstown Police Department. Two 

weeks later he filed another motion in limine seeking to exclude Jordan’s testimony about 

Hydeia returning a firearm to appellant and testimony about appellant allegedly being 

involved in an armed robbery with Jordan. The trial court denied both motions. 

{¶16} The matter proceeded to a jury trial. The state dismissed the murder count 

and its accompanying firearm specification. The jury found appellant guilty on all 

remaining counts. 
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{¶17} At the subsequent sentencing hearing, the trial court merged appellant’s 

convictions as follows: Count Two (aggravated murder plus a firearm specification) 

merged with Count One (aggravated murder plus a firearm specification); Counts Five 

and Six (felonious assault plus two firearm specifications) merged with Count Four 

(attempted murder plus a firearm specification); and Count Nine (witness intimidation) 

merged with Count Seven (felonious assault plus a firearm specification). 

{¶18} The trial court sentenced appellant on each count as follows: life 

imprisonment without parole plus three years for the firearm specification on Count One, 

eleven years plus three years for the firearm specification on Count Four, eight years plus 

three years for the firearm specification on Count Seven, and eleven years plus three 

years for the firearm specification on Count Eight. The trial court ordered the sentences 

to run consecutively for a total of life imprisonment without parole plus 30 years, plus an 

additional 12 years for the firearm specifications. 

{¶19} Appellant timely filed his notice of appeal on June 5, 2018. He now raises 

five assignments of error. 

{¶20} Appellant’s first assignment of error states: 

 THE INTRODUCTION OF UNFAIRLY PREJUDICIAL HEARSAY 

STATEMENTS OF RONALD LEWIS AND JAVEL BATES DURING 

APPELLANT’S TRIAL VIOLATED HIS RIGHT TO DUE PROCESS AND 

CONFRONTATION AS GUARANTEED BY THE FOURTH, FIFTH, SIXTH, 

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, AND WAS CONTRARY TO THE OHIO RULES OF 

EVIDENCE. 

{¶21} Appellant argues that Detectives Sweeney’s and Barber’s testimony about 

Ronald’s statements, which were about statements made by Javel to Ronald, violated his 

right to confront witnesses or otherwise constituted inadmissible hearsay. 

{¶22} Javel made statements to Ronald on March 8, 2017 about who shot him. 

Ronald relayed Javel’s statements to Detective Sweeney at his house and later to 

Detectives Sweeny and Barber at the Youngstown Police Department. Detective 

Sweeney testified that, at Ronald’s house, Ronald said that Javel said appellant was one 
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Case No. 18 MA 0064

of the people who shot him. Ronald then went to the Youngstown Police Department for 

an interview with the detectives where Ronald again said that Javel told him appellant 

was one of the people who shot him. The detectives were not able to interview Javel 

because of Javel’s condition and the fact that he died approximately two weeks after he 

was shot. 

{¶23} There are three sets of statements admitted at trial that appellant argues 

violated his right under the Confrontation Clause or otherwise constituted inadmissible 

hearsay: Javel’s statements to Ronald; Ronald’s statements to Detectives Sweeney and 

Barber at Ronald’s house; and Ronald’s statements to Detectives Sweeney and Barber 

at the Youngstown Police Department. We will begin by analyzing whether the three sets 

of statements violated appellant’s right under the Confrontation Clause. 

{¶24} The Confrontation Clause prohibits the introduction of testimonial 

statements by a non-testifying witness (unless that witness is unavailable to testify and 

the defendant had a prior opportunity for cross-examination). State v. Grabe, 7th Dist. 

Mahoning No. 16 MA 0061, 2017-Ohio-1017, ¶ 20 citing Crawford v. Washington, 541 

U.S. 36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). 

{¶25} In determining if a statement is testimonial or not, courts apply the primary 

purpose test. See State v. Carter, 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501. 

Prior to the United States Supreme Court decision in Ohio v. Clark, 576 U.S. 237, 135 

S.Ct. 2173, 192 L.Ed.2d 306 (2015), Ohio used the primary-purpose test for evaluating 

whether statements made to law enforcement were testimonial and the objective-witness 

test for evaluating whether statements made to someone other than law enforcement 

were testimonial. But in Clark, the Court applied the primary-purpose test to a statement 

made to someone other than law enforcement. Id. The Court pointed out that in 

evaluating such a statement they should consider the statement in context noting that a 

statement made to non-law enforcement individuals is significantly less likely to be 

testimonial than a statement given to law enforcement. Id. at 2182. 

{¶26} A “statement is testimonial if the circumstances objectively indicate there is 

no ongoing emergency and the primary purpose of the interrogation is to establish past 

events potentially relevant to later criminal prosecution.” State v. Craig, 7th Dist. 

Mahoning No. 18 MA 0102, 2020-Ohio-1102, ¶ 35, citing Hammon v. Indiana, 547 U.S. 
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Case No. 18 MA 0064

813, 822, 26 S.Ct. 2266, 165 L.Ed.2d 224 (2006). But if the circumstances objectively 

indicate the primary purpose of the interrogation was to aid police to assist in an ongoing 

emergency, then the statement is non-testimonial and does not fall within the scope of 

the Confrontation Clause. Id. at ¶ 36-37, citing Michigan v. Bryant, 562 U.S. 344, 358, 

131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). 

{¶27} Beginning with Javel’s statements to Ronald, the testimony at trial 

indicated that Javel was at Ronald’s house on March 8, 2017 and then left. When Javel 

returned later the same day, Javel’s car had numerous bullet holes and Javel was 

suffering from a gunshot wound. Javel informed Ronald that there was an altercation and 

appellant was one of the people who shot him. 

{¶28} With this statement, Javel was not attempting to create an out-of-court 

substitute for trial testimony. Javel was informing Ronald about the circumstances 

surrounding his gunshot wound. Statements about assaults to family members or friends 

are generally non-testimonial statements. Craig, supra, at ¶ 63. Therefore, Javel’s 

statement to Ronald was non-testimonial. 

{¶29} Next, there is Ronald’s statement to Detective Sweeney at Ronald’s 

house. The testimony at trial indicates that Detectives Sweeney and Barber were 

dispatched to Ronald’s house to investigate a felonious assault. Upon arriving at 

Ronald’s house, Detective Sweeney inspected Javel’s car. He then questioned Ronald 

about what happened to Javel in Detective Barber’s presence. Ronald was initially 

hesitant to talk to Detective Sweeney but eventually told Detective Sweeney that Javel 

said appellant shot him. 

{¶30} Detectives Sweeney and Barber responded to a felonious assault call at 

Ronald’s house. Upon arriving, they observed bullet holes and a large amount of blood 

in Javel’s car. Javel had been critically injured and had been transported to the hospital 

by ambulance. Detective Sweeney then spoke to Ronald at the scene who told him that 

Javel said appellant was one of the people who shot him. The detectives’ testimony at 

trial indicated that they were involved in an ongoing emergency because the man or men 

who shot Javel were still at large in the community. Detective Sweeney’s questioning of 

Ronald had the primary purpose of ascertaining what happened to Javel, which at the 

time was an on-going emergency. Therefore, Ronald’s statement to Detective Sweeney 
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Case No. 18 MA 0064

at Ronald’s house was non-testimonial in nature. Because Ronald’s statement was nontestimonial, its admission did not violate appellant’s confrontation rights. 

{¶31} Next, we turn to Ronald’s statement to Detectives Sweeney and Barber at 

the Youngstown Police Department. After Detectives Sweeney and Barber completed 

their investigation at the house, they asked Ronald to come to the Youngstown Police 

Department to give an official statement. 

{¶32} Ronald’s statement to the detectives at the Youngstown Police Department 

was testimonial in nature. Detectives Sweeney and Barber had already investigated at 

the house. They were aware of the details surrounding Javel’s shooting by the time 

Ronald gave this statement. They were not attempting to resolve an ongoing emergency. 

Instead, they were attempting to establish or prove a past act. As such, the admission of 

this statement violated appellant’s confrontation rights. 

{¶33} But the admission of Ronald’s statement to detectives at the Youngstown 

Police Department was harmless error. Harmless error is “[a]ny error, defect, irregularity, 

or variance which does not affect substantial rights[.]” State v. Morris, 141 Ohio St.3d 

399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23 quoting Crim.R. 52(A). Harmless error shall 

be disregarded. Id. In this case, the admission of Ronald’s statement to the detectives 

at the Youngstown Police Department was harmless error because it was identical to 

Ronald’s statement to Detective Sweeney at Ronald’s house. The evidence at trial 

indicated that in both statements, Ronald said that Javel told him appellant was one of 

the people who shot Javel. Having found that Ronald’s statement at his house was nontestimonial, the admission of Ronald’s statement to the detectives at the Youngstown 

Police Department did not affect appellant’s substantial rights and, is therefore, harmless 

error. 

{¶34} Having determined that Javel’s statement to Ronald and Ronald’s 

statement to Detective Sweeney at his house were non-testimonial, we must now 

determine the admissibility of these statements under the Ohio Rules of Evidence. State 

v. Triplett, 7th Dist. Mahoning No. 17 MA 0128, 2018-Ohio-5405, ¶ 91 citing Ohio v. Clark, 

135 S.Ct. at 2180. 

{¶35} The admission of evidence is within the discretion of the trial court and the 

court's decision will only be reversed upon a showing of abuse of discretion. State ex rel. 
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Case No. 18 MA 0064

Sartini v. Yost, 96 Ohio St. 3d 37, 2002-Ohio-3317, 770 N.E.2d 584. This includes rulings 

on hearsay issues. State v. Rupp, 7th Dist. Mahoning No. 05 MA 0166, 2007-Ohio-1561, 

¶ 78 citing State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151. Abuse of 

discretion implies that the court acted in an unreasonable, arbitrary, or unconscionable 

manner. Sartini at ¶ 21. 

{¶36} Appellant argues that the above statements constitute inadmissible 

hearsay. Hearsay is a statement, other than one made by the declarant while testifying 

at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 

801(C). Hearsay is generally not admissible at trial. Evid.R. 802. 

{¶37} We begin with Javel’s statement to Ronald. Javel’s statement that 

appellant shot him meets two exceptions to the hearsay rule. It qualified as both an 

excited utterance and a present-sense impression. 

{¶38} An excited utterance is “[a] statement relating to a startling event or 

condition made while the declarant was under the stress of excitement caused by the 

event or condition.” Evid.R. 803(2). A present-sense impression is “[a] statement 

describing or explaining an event or condition made while the declarant was perceiving 

the event or condition, or immediately thereafter unless circumstances indicate lack of 

trustworthiness.” Evid.R. 803(1). 

{¶39} In this case, at the time Javel made the statement to Ronald, Javel had just 

recently been shot. Javel’s statement to Ronald was about the startling event of him 

being shot while Javel was still under the stress of being shot. Therefore, Javel’s 

statement to Ronald qualified as an excited utterance. Moreover, Javel made this 

statement soon after being shot while he was still bleeding and had yet to be transported 

to the hospital. Thus, the statement also qualified as a present-sense impression. 

{¶40} Next, we address Ronald’s statement to Detective Sweeney at his house. 

During oral argument, the state argued that Ronald’s statement was not hearsay because 

it was not being offered for the truth of the matter asserted. Instead, the state argued that 

it was offered to show Ronald’s state of mind in that he believed appellant had shot Javel. 

{¶41} We find this argument persuasive. During the state’s case-in-chief, the 

testimony indicated that Ronald believed appellant was the person who shot Javel. 

Whether appellant shot Javel or not was irrelevant. The day Javel died, Ronald was upset 
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Case No. 18 MA 0064

and posted an angry and threatening message on Facebook. Two days after Ronald 

posted the Facebook message, Ronald was killed. Mark Hollinshead spoke to appellant 

a day or two after Ronald was killed. (Tr. 308). Appellant said, “I’m going to give my 

condolences to you about your boy and stuff, but he shouldn’t have put that on Facebook.” 

(Tr. 308). 

{¶42} The statement from Ronald at his house was not offered to prove the truth 

of the matter asserted (that appellant shot Javel), it was offered to show that Ronald 

believed appellant shot Javel and how this belief affected Ronald. This led to Ronald 

posting a threatening message on Facebook, which then may have led to Ronald being 

killed. This theory is also supported by the fact that as of the date of trial, Javel’s murder 

was still unsolved. (Tr. 200). Based on the above, the trial court did not abuse its 

discretion by permitting this statement because it was not hearsay. 

{¶43} In conclusion, the statements from Javel to Ronald and then from Ronald 

to Detective Sweeney at Ronald’s house were non-testimonial in nature. The statement 

from Ronald to Detectives Sweeney and Barber at the Youngstown Police Department 

was testimonial in nature but its admission was harmless error. 

{¶44} As for the hearsay issues surrounding the statements, the trial court’s 

admission of these statements was not an abuse of discretion because Javel’s statement 

to Ronald qualified as an excited utterance and a present-sense impression and Ronald’s 

statement to Detective Sweeney at Ronald’s house was not hearsay. 

{¶45} Accordingly, appellant’s first assignment of error is without merit and is 

overruled. 

{¶46} Appellant’s second assignment of error states: 

 THE INTRODUCTION OF UNFAIRLY PREJUDICIAL HEARSAY 

STATEMENTS DURING THE TESTIMONY OF MULITPLE WITNESSES 

VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED 

BY THE FOURTH, FIFTH, AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION, AND WAS CONTRARY TO THE 

OHIO RULES OF EVIDENCE. 
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Case No. 18 MA 0064

{¶47} In addition to testimony regarding Ronald’s statements, appellant argues 

that the trial court erred in permitting several other witnesses to testify about other hearsay 

statements. Appellant complains of numerous pieces of testimony from several witnesses 

in this assignment of error. He concedes that he did not object to all of the testimony at 

issue in this assignment of error. 

{¶48} Testimony to which appellant objected is subject to the abuse of discretion 

standard of review previously set forth. As for testimony that was not objected to, it is 

subject to a plain error review. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 

N.E.2d 596, ¶ 108. Plain error is error that is obvious and, but for the error, the outcome 

of the trial would have been different. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 

804 (1978). 

{¶49} Appellant takes issue with portions of Detective Barber’s testimony. As 

part of his investigation, Detective Barber interviewed Sevalle Turner, Jordan Kennedy, 

Hydeia Hardin, and Mark Hollinshead. Detective Barber testified about his interviews with 

each of these people. Appellant argues that Detective Barber’s testimony about these 

interviews was hearsay. Appellant also argues that allowing Detective Barber to repeat 

testimony from these four witnesses created an unfairly prejudicial effect. 

{¶50} Beginning with Detective Barber’s interview with Mark Hollinshead, 

according to Mark, there was an ongoing feud between Javel and appellant. After Javel 

died, “Ron may have said something. He [Mark] was not specific about what he [Ronald] 

said, but he [Mark] did not know anything about Ronald Lewis’ shooting, is what he told 

us.” (Tr. 473). Detective Barber elaborated that Mark “didn’t provide a specific, but what 

he was talking about was that Ron may have been saying something.” (Tr. 473). 

Appellant objected to this answer. The trial court overruled the objection holding that the 

testimony was not used to prove the truth of what was told to Detective Barber but was 

used to explain what the detective did. (Tr. 473). 

{¶51} Detective Barber continued that Mark told him that Ronald posted 

something on Facebook, but Mark did not remember what was posted specifically. (Tr. 

474). Mark also told Detective Barber that Ronald was at a neighborhood in Youngstown 

and was possibly making threats. (Tr. 474). Appellant objected again but the trial court 

overruled the objection. (Tr. 474). It permitted the testimony for the limited purpose of 
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allowing Detective Barber to explain what he did in the investigation. (Tr. 475). Detective 

Barber concluded his testimony about his interview with Mark by saying “Ron may have 

been up there saying something, but he [Mark] didn’t provide specifics again or who it 

was directed to.” (Tr. 475). 

{¶52} Because appellant objected to this line of questioning, it is subject to an 

abuse of discretion review. 

{¶53} Law enforcement officers may testify to out-of-court statements for the nonhearsay purpose of explaining the steps in their investigation. State v. Beasley, 153 Ohio 

St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 172, reconsideration denied, 152 Ohio 

St.3d 1468, 2018-Ohio-1796, 97 N.E.3d 503, and cert. denied, 139 S.Ct. 796, 202 

L.Ed.2d 587 (2019). Testimony to explain an officer’s investigation is admissible as nonhearsay if it meets three requirements: “(1) the conduct to be explained is relevant, 

equivocal, and contemporaneous with the statements, (2) the probative value of the 

statements is not substantially outweighed by the danger of unfair prejudice, and (3) the 

statements do not connect the accused with the crime charged.” Id. 

{¶54} Detective Barber’s testimony about Mark’s statements meets these criteria. 

The detective’s testimony regarding his conversation with Mark was explained as one of 

the steps Detective Barber took in his investigation. Additionally, Detective Barber stated 

that Mark could not recall any specific statements Ronald may have made. Finally, even 

if Ronald made some vague threats to one in particular, this did not connect appellant 

with the crime charged. Thus, Detective Barber’s testimony regarding Mark’s statements 

was non-hearsay. 

{¶55} Moreover, Mark testified in this case. He stated that he spoke with 

appellant a day or two after Ronald was killed. According to Mark, appellant said, “I’m 

going to give my condolences to you about your boy and stuff, but he shouldn’t have put 

that on Facebook.” (Tr. 308). Mark said that appellant’s statement meant that Ronald 

was “threatening something” on Facebook. (Tr. 308-309). Thus, the jury would have 

heard Mark’s testimony regarding potential threats appellant had been making even if 

Detective Barber had not testified about these threats. 

{¶56} Next, Detective Barber testified about his interview with Sevalle Turner. 

Sevalle is Ronald’s sister, Javel’s half-sister, and was in Ronald’s home when Ronald 
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and Tracey were shot. After the shooting, Sevalle called Detective Barber multiple times 

inquiring about the investigation into Ronald’s death. During one such call, Sevalle told 

Detective Barber that the two men in the house when Ronald was shot were wearing 

gloves. (Tr. 477). She also told the detectives that the men pointed their guns at her 

while she was in the bathroom. (Tr. 477). Sevalle did not recall if she heard a clicking 

sound, indicating that the guns were empty, when they were pointed at her. (Tr. 477). 

Sevalle could only see the eyes of the two men because they were wearing masks and 

described them as two black males. (Tr. 478). 

{¶57} Appellant did not object to this line of questioning. As such, it is subject to 

a plain error review. 

{¶58} Detective Barber’s testimony about Sevalle’s statements is hearsay 

pursuant to Evid.R. 801(C). Detective Barber testified about out-of-court statements from 

Sevalle that were offered in court to prove the truth of the matter asserted. Namely, they 

were offered to show that two men, one potentially being appellant, intimidated Sevalle 

or threatened to cause Sevalle serious bodily harm by pointing a gun at her immediately 

after shooting two people. Because this testimony is hearsay, the first prong of a plain 

error analysis is satisfied. 

{¶59} But there is no indication that, but for this testimony, the outcome of 

appellant’s trial would have been different. Sevalle testified at trial to the same events as 

Detective Barber. Had Detective Barber’s testimony about his interview with Sevalle been 

excluded, the jury was still presented with the same testimony from Sevalle herself. 

Because Detective Barber’s testimony about his interview with Sevalle did not affect the 

outcome of appellant’s trial, it was not plain error to admit this testimony. 

{¶60} Next, Detective Barber testified about his interview with Jordan Kennedy. 

Jordan was appellant’s friend. (Tr. 481). At the time of Ronald’s and Tracey’s shooting, 

Jordan was incarcerated at the Mahoning County Justice Center. (Tr. 481). Jordan had 

been in possession of two firearms that belonged to appellant, a .45 caliber and a 9mm. 

(Tr. 481). The shell casings found at Ronald’s house were from a .45 caliber and a 9mm. 

(Tr. 481). About one week before being incarcerated, Jordan returned one of the guns to 

appellant. (Tr. 482). After he was incarcerated, Jordan arranged for appellant to retrieve 

the second firearm from Hydeia Hardin. (Tr. 482). 
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Case No. 18 MA 0064

{¶61} Appellant did not object to this line of testimony. As such, it is subject to a 

plain error review. 

{¶62} Detective Barber’s testimony as to what Jordan told him about the firearms 

was hearsay. It was offered to show that appellant was in possession of the same two 

types of firearms that were used to shoot Ronald and Tracey. But once again, there is 

no indication that but for this testimony the outcome of the trial would have been different. 

Jordan testified as to the same events as Detective Barber. Thus, the jury would have 

heard this evidence even without Detective Barber’s testimony. As such, plain error does 

not exist with this line of testimony. 

{¶63} Next, Detective Barber testified about his interview with Hydeia Hardin. 

According to Detective Barber, Jordan wanted Hydeia to return a gun to appellant. (Tr. 

482). Hydeia told the detective that appellant picked up a gun from her. (Tr. 482). 

{¶64} Appellant did not object to this line of testimony. As such, it is subject to a 

plain error review. 

{¶65} This line of testimony is hearsay. This testimony shows a chain of events 

as to how Jordan’s DNA was found on a shell casing at the scene of the shooting. This 

testimony was offered to show the truth of the matter asserted, namely, that Jordan’s 

DNA was at the scene of the shooting because Hydeia gave appellant a gun and bullets 

that were in Jordan’s possession. 

{¶66} But the admission of this testimony did not affect the outcome of appellant’s 

trial. Hydeia also testified at trial that Jordan arranged for appellant to meet her in order 

to retrieve the gun. (Tr. 291). Appellant came to Hydeia’s home and retrieved the gun 

along with some bullets. (Tr. 292). Had Detective Barber not testified about his interview 

with Hydeia, the jury was still presented with the same testimony from Hydeia herself. 

Therefore, Detective Barber’s testimony about his interview with Hydeia does not rise to 

the level of plain error. 

{¶67} The jury would have heard all of the witnesses’ testimony even without 

Detective Barber’s testimony. The detective merely repeated what the witnesses 

themselves testified to as he explained each step he took in his investigation. Appellant 

has not demonstrated any prejudice as a result of this testimony. 
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{¶68} Appellant also argues that Detective Barber’s testimony about these four 

interviews, when all four of these witnesses also testified at trial, created a substantial 

prejudicial effect. In support, he cites State v. Butcher, 170 Ohio App.3d 52, 2007-Ohio118, 866 N.E.2d 13 (11th Dist.). In Butcher, a mother, grandmother, and physician 

testified at trial regarding statements by two children that the appellant was sexually 

abusing them. On appeal, the court found these statements to be inadmissible hearsay 

and reversed the appellant’s conviction due to the prejudice caused by the statements. 

The court noted that multiple adults, by way of inadmissible hearsay, testified that the 

appellant was the culprit. Id. at ¶ 78. It reasoned that when multiple adults repeat 

children’s stories in court it makes the children’s statements more believable. Id. at ¶ 79. 

{¶69} The present case, however, is distinguishable from Butcher. In Butcher, 

the court found significant the fact that multiple adults repeated children’s statements in 

court. This is not the case here. Moreover, in Butcher, the hearsay statements actually 

specifically identified appellant as the perpetrator of the sexual abuse. In this case, 

however, the repeated testimony appellant complains of does not explicitly identify him 

as the perpetrator of a crime. Thus, the prejudice present in Butcher is not present here. 

{¶70} The trial court did not abuse its discretion by permitting Detective Barber to 

testify about his interviews with Mark, Sevalle, Jordan, and Hydeia. 

{¶71} Next, appellant argues that it was improper for the trial court to entertain 

testimony about Ronald’s Facebook post. Appellant argues that mentioning Ronald’s 

Facebook post was hearsay. Three witnesses testified about this Facebook post: 

Detective Barber, Mark Hollinshead, and Gary Benjamin. As Detective Barber’s 

testimony about this Facebook post was already addressed in this assignment of error, 

we need not reanalyze it. 

{¶72} Mark spoke with appellant a day or two after Ronald was killed. Appellant 

told Mark “I’m going to give my condolences to you about your boy and stuff, but he 

shouldn’t have put that on Facebook.” (Tr. 308). Mark said that appellant’s statement 

meant that Ronald was “threatening something” on Facebook. (Tr. 308-309). 

{¶73} Gary Benjamin, Ronald’s childhood friend, went to Ronald’s house on 

March 23, 2017, the night before Ronald was killed. Gary went to Ronald’s house to calm 
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Ronald down after Ronald’s Facebook post. Ronald was “irate” because Javel had died 

the previous day, March 22, 2017. (Tr. 391). 

{¶74} While there was testimony that Ronald made a post on Facebook, there is 

no testimony as to what Ronald’s post actually said. Mark and Gary never specified what 

this post contained. Similarly, Detective Barber testified that Mark never specified what 

the post said. As such, there is no statement from Ronald in this instance. 

{¶75} Accordingly, appellant’s second assignment of error is without merit and is 

overruled. 

{¶76} Appellant’s third assignment of error states: 

 APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE BY 

FAILING TO OBJECT TO IMPERMISSIBLE HEARSAY EVIDENCE, IN 

VIOLATION OF HIS RIGHT TO DUE PROCESS AS GUARANTEED BY 

THE UNITED STATES AND OHIO CONSTITUTIONS. 

{¶77} Appellant argues that his trial counsel’s failure to object to the evidence 

complained of in his first two assignments of error constitutes ineffective assistance of 

counsel. 

{¶78} To prove an allegation of ineffective assistance of counsel, the appellant 

must satisfy a two-prong test. First, appellant must establish that counsel's performance 

has fallen below an objective standard of reasonable representation. Strickland v. 

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 

42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Second, 

appellant must show a reasonable probability that, but for counsel’s errors, the result of 

the proceeding would have been different. State v. Conway, 109 Ohio St.3d 412, 2006-

Ohio-2815, 848 N.E.2d 810, ¶ 95 citing Strickland.

{¶79} Appellant bears the burden of proof on the issue of counsel's effectiveness. 

State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In Ohio, a licensed 

attorney is presumed competent. Id.

{¶80} For the reasons previously set forth in appellant’s first and second 

assignments of error, the majority of the testimony appellant complains of was properly 

admitted. As for the testimony that was improperly admitted, that testimony did not have 
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a prejudicial effect on appellant’s trial. As such, appellant’s trial counsel was not 

ineffective. 

{¶81} Accordingly, appellant’s third assignment of error is without merit and is 

overruled. 

{¶82} Appellant’s fourth assignment of error states: 

 APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE IN VIOLATION OF HIS RIGHT TO DUE 

PROCESS AS GUARANTEED BY THE OHIO CONSTITUTION. 

{¶83} Appellant makes numerous arguments in this assignment of error but they 

all center on the general argument that there was no direct evidence that he was ever 

inside Ronald’s house at the time of shooting. 

{¶84} The claim that a verdict is against the manifest weight of the evidence 

concerns whether a jury verdict is supported by “the greater amount of credible evidence.” 

(Emphasis sic.); State v. Merritt, 7th Dist. Jefferson No. 09 JE 26, 2011-Ohio-1468, ¶ 45 

quoting State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The reviewing 

court weighs the evidence and all reasonable inferences and considers the credibility of 

the witnesses. Thompkins at 387. Although the appellate court acts as the proverbial 

“thirteenth” juror under this standard, it rarely substitutes its own judgment for that of the 

jury’s. Merritt at ¶ 45. This is because the trier of fact was in the best position to determine 

the credibility of the witnesses and the weight due the evidence. Id. citing State v. 

Higinbotham, 5th Dist. Stark No. 2005CA00046, 2006-Ohio-635. 

{¶85} “Only when ‘it is patently apparent that the factfinder lost its way,’ should 

an appellate court overturn the jury verdict.” Id. citing State v. Woullard, 158 Ohio App.3d 

31, 2001-Ohio-3395, 813 N.E.2d 964 (2d Dist.). If a conviction is against the manifest 

weight of the evidence, a new trial is to be ordered. Thompkins at 387. “No 

judgment resulting from a trial by jury shall be reversed on the weight of the evidence 

except by the concurrence of all three judges hearing the cause.” State v. Miller, 96 Ohio 

St.3d 384, 2002-Ohio-4931, 775 N.E.2d 498, ¶ 36 quoting Ohio Constitution, Article IV, 

Section 3(B)(3). 
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{¶86} Appellant is correct that no witnesses identified him as one of the shooters 

at Ronald’s house on March 24, 2017. There were two eyewitnesses who testified at trial: 

Sevalle Turner and Tracey Lewis. Sevalle testified that the shooters were wearing masks 

and she could only see their eyes. Sevalle only described the shooters as thin AfricanAmerican men. Tracey could not give a description of the shooters other than they were 

wearing black clothing. 

{¶87} The state relied on circumstantial evidence to identify appellant as one of 

the shooters. Officer Miller, one of the evidence collection officers, concluded that the 

point of entry into the house was the kitchen window due to: the window being open, the 

blinds on the window being disturbed, and the window’s screen being removed and laying 

on the inside of the house. (Tr. 337-338). Appellant’s DNA was found on the outside of 

the kitchen window. (Tr. 445). 

{¶88} Additionally, Jordan Kennedy’s DNA was found on one of the shell casings 

inside Ronald’s house. (Tr. 443). Jordan was incarcerated in December of 2016 and 

was still incarcerated at the time of the Lewis’ shooting. Prior to being incarcerated, 

Jordan was in possession of two of appellant’s guns: a P94 Ruger 9mm and a Hi-Point 

.45 caliber. (Tr. 271). About a week before being incarcerated, Jordan returned one of 

the guns to appellant. (Tr. 482). While he was incarcerated, Jordan arranged for 

appellant to receive the other gun from Hydeia. (Tr. 272-273). Hydeia returned the other 

gun to appellant along with a “bag of bullets[.]” (Tr. 291-292). The shell casings found at 

Ronald’s house were for a .45 caliber and a 9mm. (Tr. 343-344). 

{¶89} Appellant contends that this evidence does not indicate that he was one of 

the shooters. Troyer testified on cross-examination that, when it comes to touch DNA or 

“shedding,” he cannot differentiate between primary transfer of DNA (when a person 

touches an object and that person’s DNA is on the object) or secondary transfer of DNA 

(when person A touches person B, person B then touches an object, and person A’s DNA 

is on the object). (Tr. 448-449). Appellant also points out Detective Barber’s testimony 

that, according to Sevalle Turner, the two shooters were “thin built.” (Tr. 498-499). 

Detective Barber does not consider himself thin built and appellant is a bigger person 

than Detective Barber. (Tr. 499). 
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Case No. 18 MA 0064

{¶90} The state counters that appellant’s conviction was not against the manifest 

weight of the evidence because his DNA was on the window of Ronald’s house. In 

support of this argument, the state cites State v. Eckard, 3d Dist. Marion No. 9-15-45, 

2016-Ohio-5174. 

{¶91} In Eckard, Eckard was convicted by a jury of burglary. Id. at ¶ 2-5. He 

appealed arguing that his conviction was insufficient as a matter of law and his conviction 

was against the manifest weight of the evidence. Id. at ¶ 6. The basis of his argument 

was that no witness testified at trial that he was the person who committed the offense. 

Id. at ¶ 7, 11. The only evidence that implicated Eckard was a crowbar at the scene of 

the burglary. Id. at ¶ 14-15. A DNA profile was found on the crowbar and analysis 

indicated Eckard was the major contributor. Id. at ¶ 22. With regard to the manifest 

weight challenge, the Third District held that “because Eckard's DNA was found on the 

crowbar that was found at the crime scene, it was permissible for the jury to infer a link 

between Eckard and the crime scene.” Id. at ¶ 39. The Third District went on to hold that 

the fact the state’s witnesses did not identify Eckard as the perpetrator was a matter for 

the trier of fact to weigh. Id. citing State v. Williams, 10th Dist. Franklin No. 10AP-779, 

2011-Ohio-4760. 

{¶92} The state also cites this court’s decision in State v. Walenciej, 7th Dist. 

Jefferson No. 07 JE 6, 2007-Ohio-7206. In Walenciej, this court held that, in a manifest 

weight challenge, “[w]hen there are two fairly reasonable views of the evidence or two 

conflicting versions of events, neither of which is unbelievable, it is not our province to 

choose which one should be believed.” Id. at ¶ 47. 

{¶93} Applying Eckard and Walenciej, the jury’s determination that appellant was 

one of the shooters was not against the manifest weight of the evidence. A reasonable 

view of the evidence produced at trial was that appellant’s DNA was on the outside of the 

window because he was one of the shooters who entered Ronald’s house through the 

window. Similarly, a reasonable inference for Jordan’s DNA on one of the bullet casings 

is because the guns and bullets used during Ronald’s and Tracey’s shooting were the 

ones that Jordan gave appellant. This is also supported by the fact that Jordan testified 

that the guns he gave appellant were the same caliber of shell casings found at the house 

(a .45 caliber and a 9mm). 
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Case No. 18 MA 0064

{¶94} Next, appellant argues that the testimony about Ronald’s Facebook post 

was not indicative of his guilt. While there was no testimony about exactly what Ronald 

posted on Facebook, there was testimony suggesting that it was threatening in nature 

and that Ronald’s post showed he was angry. While this evidence may not have directly 

implicated appellant, the other evidence (including appellant’s DNA at scene, the 

evidence regarding the firearms, and the evidence that Ronald believed appellant shot 

Javel), was enough to sustain the jury’s verdict. 

{¶95} Finally, appellant specifically argues that his conviction for felonious 

assault against Sevalle Turner was against the manifest weight of the evidence. 

Felonious assault is defined as, among other things, knowingly cause or attempting to 

cause physical harm to another by means of a deadly weapon. R.C. 2903.11(A)(2). 

{¶96} Appellant argues that there was no evidence that either of the shooters 

caused or attempted to cause Sevalle harm. The evidence produced at trial showed that, 

after Ronald and Tracey Lewis were shot, the shooters found Sevalle in the house and 

pointed their guns at her. Neither of the shooters said anything nor shot Sevalle. 

{¶97} The state cites two cases: State v. Green, 58 Ohio St.3d 239, 569 N.E.2d 

1038 (1991), and State v. Gilbert, 7th Dist. Mahoning No. 08 MA 206, 2012-Ohio-1165. 

In Green, the Ohio Supreme Court held that “the act of pointing a deadly weapon at 

another coupled with a threat, which indicates an intention to use such weapon, is 

sufficient evidence to convict a defendant of the offense of ‘felonious assault’ as defined 

by R.C. 2903.11(A)(2).” Green at 241. In Gilbert, this court held that, in felonious assault 

cases, the defendant’s intent to cause physical harm may be inferred from his actions 

under the circumstances. Gilbert at ¶ 31. 

{¶98} If we infer appellant’s intent from the actions under the circumstances, this 

conviction for felonious assault was not against the manifest weight of the evidence. 

Appellant shot two people numerous times moments before encountering Sevalle. 

Appellant and the other shooter then both pointed their guns at Sevalle. The 

circumstances indicate that appellant was willing to shoot Sevalle because (1) he had 

previously fired his gun numerous times in the house Sevalle was in and (2) he pointed 

his gun directly at Sevalle moments after shooting two people numerous times. While 

there was no verbal threat, the circumstances in this case indicate that there was a non-
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verbal threat to cause Sevalle severe bodily harm. Thus, appellant’s conviction for 

felonious assault against Sevalle was not against the manifest weight of the evidence. 

{¶99} Accordingly, appellant’s fourth assignment of error is without merit and is 

overruled. 

{¶100} Appellant’s fifth assignment of error states: 

 THE TRIAL COURT ERRED BY NOT PROPERLY INSTRUCTING 

THE JURY REGARDING ATTEMPT, WHICH PREJUDICED APPELLANT 

AND VIOLATED HIS RIGHT TO DUE PROCESS AS GUARANTEED BY 

THE UNITED STATES AND OHIO CONSTITUTIONS. 

{¶101} Appellant argues that the trial court incorrectly instructed the jury on 

attempt. 

{¶102} After the jury instructions, the trial court had a discussion with both counsel 

off the record. At the conclusion of that discussion, the trial court noted that “there are no 

issues regarding the charge[.]” (Tr. 599). The failure to object to improprieties in the jury 

instructions waives all but plain error. State v. Triplett, 7th Dist. Mahoning No. 17 MA 

0128, 2018-Ohio-5405, ¶ 34, quoting State v. Underwood, 3 Ohio St.3d 12, 444 N.E.2d 

1332 (1983). 

{¶103} During jury instructions, the trial court instructed the jury on, among other 

things, aggravated burglary, attempted murder, and felonious assault. (Tr. 576-579). The 

first instruction of attempt was during the aggravated burglary instruction. The trial court 

defined “attempt” pursuant to R.C. 2911.11(A)(1) as “simply an unsuccessful try[.]” (Tr. 

578). During the attempted murder instruction, the trial court noted that attempt has 

“already been defined for you[.]” (Tr. 581). During the felonious assault instruction, the 

trial court defined attempt as “he wasn’t able to do it, but he tried to do it[.]” (Tr. 584). 

{¶104} Appellant argues this is an oversimplification of the definition of attempt. 

Pursuant to R.C. 2923.02(A), attempt is defined as “conduct that, if successful, would 

constitute or result in the offense.” 

{¶105} The trial court’s instructions on attempt, while not word-for-word recitations 

of R.C. 2923.02(A), are not misleading or an oversimplification as appellant argues. The 

trial court’s instructions of attempt being “an unsuccessful try” and of appellant trying to 
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do it but not being able both fit the Revised Code definition of “conduct that, if successful, 

would constitute the offense.” As such, there is no obvious error regarding the trial court’s 

instruction of attempt and, therefore, no plain error. 

{¶106} Accordingly, appellant’s fifth assignment of error is without merit and is 

overruled. 

{¶107} For all of the foregoing reasons, the trial court’s judgment is hereby 

affirmed. 

Robb, J., concurs. 

D’Apolito, J., concurs.
[Cite as State v. James, 2020-Ohio-4289.]

 

 

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of 

the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.